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Personal Injury Lawsuits Always Seek Out Insurance Coverage > Use and Operation of a Motor Vehicle

Case Comment – Russo v. John Doe (2009 Ontario Court of Appeal) affirming Russo v. John Doe (2008 Ontario Superior Court)

Every personal injury lawsuit seeks out an insurance policy which covers the defendant(s) to the lawsuit.  As a result, there have been many cases which seek clarification of whether their specific circumstance fits under the wording of a motor vehicle’s insurance policy, including whether the accident arose out of “use and operation” of a motor vehicle.

In this sad and widely reported situation on April 24, 2004, Ms. Russo was an innocent bystander shot and injured by a bullet while in a fast food sandwich shop in Toronto.  She parked her car in front of the shop and left her daughter temporarily in her vehicle, with the engine still running, while Ms Russo quickly went in to purchase a sandwich for her daughter.  The shooter(s) were driving by in a van and hoped to shoot other people in the sandwich shop; the shooters temporarily slowed or stopped their van, shot their guns and then fled the scene.  Sadly, Ms. Russo was left a parapalegic by the shooting.  Three people were convicted of this crime in 2006.

Ms. Russo brought this lawsuit seeking damages for her personal injuries suffered in this incident.  She sought insurance coverage from her own car’s insurance policy pursuant to the uninsured / underinsured provisions, being the OPCF 44R Endorsement standard to all Ontario car insurance policies.

In May, 2008, the defendant insurer brought a motion for a determination of whether this insurance coverage was available to the plaintiff.  The motions Judge found that there was no OPCF 44R Endorsement insurance coverage available to the plaintiff.

On April 15, 2009, the Ontario Court of Appeal affirmed the decision of the motions Judge, though with a variance in their reasoning.  It found that Ms Russo’s injury did not arise “directly or indirectly from the use or operation” of a motor vehicle, despite the fact that the driver was engaged in driving throughout the criminal act.

For reference, the Supreme Court of Canada cases recently dealing with the extent of automobile coverage are: Lumbermens Mutual Casualty Company  v. Herbison, [2007] 3 S.C.R. 393, 2007 SCC 47 and Citadel General Insurance Company v. Vytlingam, [2007] 3 S.C.R. 373, 2007 SCC 46
Gregory Chang
Toronto Insurance Litigation Lawyer